Wright v Gibbons

The High Court of Australia heard an appeal from the Supreme Court of Tasmania concerning the severance of a joint tenancy. The dispute arose between Bessie Melba Gibbons, the respondent and plaintiff, and the executors of the estates of her deceased co-joint tenants, Olinda Gibbons and Ethel Rose Gibbons, who were the appellants. The core issue was whether a memorandum of transfer executed by Olinda and Ethel, purporting to cross-transfer their interests to each other, had effectively severed the joint tenancy under the *Real Property Act 1862-1935* (Tas.).

The legal question before the court was whether the registration of a single instrument of transfer, by which two of three joint tenants purported to transfer their respective undivided interests to each other, operated to sever the joint tenancy. The Supreme Court of Tasmania had held that the joint tenancy was not severed, reasoning that such a mutual assurance between joint tenants could achieve nothing and therefore failed. The appellants contended that the transaction, particularly under the Torrens system, should be recognised as a severance.

The High Court, in allowing the appeal, determined that the joint tenancy had been severed. The Court reasoned that while at common law a release was the traditional method for one joint tenant to transfer their interest to another, the *Real Property Act* provided for alienation by transfer. The Act did not alter the substantive common law principles of joint tenancy but simplified the conveyancing mechanism. The Court held that the cross-transfers, when registered, effectively operated as a transfer of each sister's interest to the other, thereby destroying the unity of title and creating a tenancy in common. This was consistent with the intention of the parties and the principles of the Torrens system, which prioritised registration and simplified conveyancing.

The High Court ordered that the joint tenancy in the land under the *Real Property Act* was severed by the registration of the transfer. Consequently, the deceased sisters' estates were entitled to one-third shares as tenants in common, and the respondent, Bessie Melba Gibbons, did not take the entirety of the land by survivorship.